Unresolved Legal Questions about Patents and Standard Setting

This column will be one of several concerning presently unresolved legal issues that arise in connection with standard setting and the licensing or enforcement of patents that cover some aspect of the standard. Resolving these issues might require standard-setting organizations to adopt appropriate bylaws. Or companies participating in standards setting might have to submit letters of agreement. Unfortunately, however, such documents are often absent, and the courts end up setting “default” procedures to govern the aftermath of silence by standard-setting organizations on these points. What is a standard and what is standard setting? A committee of an organization such as the IEEE or ANSI, subject to formal bylaws and other documents, writes a formal, or so-called de jure standard. Generally, any interested member of the industry or industries involved can participate in the standards-setting process, usually through employees who are members of the organization. But what about an informal, ad hoc group operating on a one-shot or narrowly focused basis? The same question exists for an industry patent pool in which self-selected industry members join together to combine patents to establish mutually compatible products. Such groups might not invite all members of the industry to participate in their process, but the disk format, data protocol, or other technical product that they agree on can become a de facto industry standard. Do the same legal rules apply here as in IEEE standards? For purposes of the present discussion, I make no distinction between standards set by IEEE and ANSI, on the one hand, and private, ad hoc bodies on the other hand. I apply the term “industry standard” to all of them alike.